Beginning & Rapid Growth Of Dial-A-Porn
According to an article in the N.Y. Native (“The Business of Phone Sex,” 10/24/83), dial-a-porn “first appeared in its commercial form in 1981” when staffers at the porn magazine High Society put “sexual messages on answering machines in their office, as a free readers’ service-cum-circulation booster. The response was overwhelming.” Soon after, High Society won “divested dial-it lines in a public lottery,” enabling the magazine to take in 800,000 calls a day. What started as a “whimsical notion…rapidly turned into a phenomenal moneymaker,” said the article.
According to an article in the N.Y. Daily News, (“Phone pornucopia,” 7/19/83), “Moans and groans on the telephone have made the recorded porno message business one of New York’s hottest industries - and one of the N.Y. Telephone Co.’s sexiest moneymakers…Phone officials say they don’t like the porno business but insist their hands are tied because of an FCC order forcing them to give up control of ‘dial-it’ lines. Last January, with the blessings of the State Public Service Commission, the phone company held a lottery to determine who would run the lines…One winner was High Society magazine… As of yesterday, there were at least 12 recorded porno messages promoting [other] sexually oriented magazines like Penthouse…”
According to an article in USA TODAY (“Freedom to say anything pays off,” 10/7/83), High Society’s “hot line, which has spawned at least eight imitators, expanded to Philadelphia a month ago and hopes to start up soon in Baltimore, Detroit and Los Angeles.”
According to an article in DM News (“Dial-Porn Firms Come Under…Regulation by the FCC,” 5/15/87), Eugene Kordahl, president of National Telephone Telemarketing, Inc., estimated that dial-a-porn “‘is a $2.4 billion annual business in the United States, and it’s growing.’” Kordahl also said, “approximately 11,750 agencies are involved in phone sex in the United States.”
Children & Dial-A-Porn
What made “dial-a-porn” so horrific, as far as children were concerned, was the ability of any child old enough to dial a telephone to access thousands of dial-a-porn numbers without proof of age or pre-payment. Calls were automatically billed to phone numbers. As the following articles indicate, many children did (and perhaps still do) call dial-a-porn numbers.
“Angry North Andover parents, whose kids have been running up huge telephone bills calling a New York City sex tape, are demanding that the government step in…‘I think its disgusting,’ said [name omitted], a mother of four who is organizing the smut talk protest…‘I confronted the kids and they admitted making the calls…First my 12-year-old daughter called, then her brother and sister, who are 8 and 10, called; then the neighborhood kids came over and called.’” [“Parents stuck with phone bill from smut talk service,” Boston Herald American, 11/15/83]
“It’s like the old joke about getting an obscene phone call, collect. Except that parents of adolescents who run up the phone bill with ‘dial-a-porn’ calls aren’t laughing…In the Detroit area, three different numbers…are answered by a recording in which a woman simulates sex acts…The school-yard grapevine, however, apparently has publicized them well.” [“‘Dial-a-porn’ - Parents growl, kids howl,” Detroit Free Press, 2/25/84]
“Those people and more than 25,000 others have let the Federal Communications Commission know what to think about telephone sex services, known generally as ‘dial-a-porn,’ which allows callers to listen to women simulating sex. The Commission asked for public comment last December, but no one at the agency predicted the deluge of mail received in response. The letters…come from all parts of country…Most are written by mothers…[Couple’s names omitted here] of Mishawaka, Ind., wrote: ‘We were dismayed to see charges on our phone bill to the ‘dial-a-porn’ number in New York. Upon questioning, we discovered our children had gotten the number from friends, who had gotten it from their friends, etc., and called it without our knowledge…’” [“Many Demanding Curb On Phone Pornography,” N.Y. Times, 5/19/84]
“When a woman in Los Angeles found a dozen 50-cent calls to strange numbers on her phone bill, she confronted her teen-age son, who admitted with embarrassment that he and his friends had been calling for recorded pornographic messages. The woman dialed it herself and heard a woman’s voice describing her sexual experience, with erotic slang and noises of ecstasy…[D]ial-a-porn…may simply be the American way for pornographers to have…‘free access to your children.’” [“Do We Have To Live With Porn Purveyed By Phone,” L.A. Times, 4/22/84]
“Angered by widespread advertising of ‘dial-a-porn’ telephone messages, [the Pittsburgh] City Council has urged statewide restrictions on children’s access to the services…Now, children have virtually unlimited access to phone sex services, Councilman Jack Wagner said…Parents often don’t learn of the calls until their phone bill arrives...children have run up ‘outrageous’ bills, he said.” [“Council wants to pull plug on ‘dial-a-porn,’” Pittsburgh Press, 2/17/87]
“[Father’s name omitted] 15-year-old son hid the phone bill when it arrived, so [the father] did not see it until the phone was shut off - for non-payment of $5,312 for calls to a 976 number that offered sexually explicit conversation…‘He got hooked,’ [the father] said, ‘He just got so that he couldn’t keep from calling,’ said [the father’s sister]. ‘I think it got out of control for a while,’ said Susan West, an FCC analyst…‘I really can’t believe that there’s…a kid in this country who hasn’t called one of these lines by now, and I think we’ve heard from every one of their parents.’” [“Regulators Answer Protests of Huge 976 Phone Charges,” L.A. Times, 9/28/87]
“A $10 million lawsuit was filed against Pacific Bell by a family of a 12-year-old boy accused of molesting a 4-year-old girl after he listened to sexual messages on a ‘976’ number…The incident occurred about two weeks after the son and two older boys spent a long session at a Hayward church listening to ‘dial-a-porn’ messages, his father said. The boys had gone there to clean up after a church supper.” [“$10 Million ‘Dial-A-Porn’ Suit,” San Francisco Chronicle, 10/15/87]
“The State Public Service Commission approved a plan giving South Central Bell customers 60 days to block access to 900 and 976 telephone prefixes without charge…PSC spokeswoman Teresa Houser said the agency received complaints from parents whose telephone bills showed their children called the services…‘Any child can pick up the phone and hear the messages,’ she said.” [“Commission OKs plan to block dial-a-porn access,” Knoxville News Sentinel, 8/19/87]
“’You know what I like?’ the sultry voiced asked…The phone message continued with vivid descriptions of oral sex and multi-orgasmic intercourse, sparing no graphic details. After a while the voice whispered, ‘Stay on the line.’ The listeners, three teen-age boys and a young girl did just that. For the next 3½ hours, on four extensions, the group listened to dozens of sexual fantasies…on ways to perform every sex act from sodomy to intercourse…Throughout the night, as the adults slept, the four children listened. The next day, the youngsters acted. The 15-year-old neighbor performed sodomy and intercourse on the [family name omitted] 10-year-old daughter. He later brought over his 11-year-old brother, who had not listened to the calls, and coached him into performing the same act on the girl. As the boys took turns with her, the girl encouraged them, reciting phrases she’d heard on the phone, such as, ‘You get me so hot, oh, please do it to me.’” [“Titillation by telephone,” Washington Times, 5/17/87]
“The most reliable source for ‘dial-a-porn’ numbers is pornographic magazines, which are brought home by adults and ‘sneaked’ by youngsters. However, children can obtain numbers of ‘adult’ phone lines from…other sources. Children watching TV might catch an ad for a ‘party line’…Adults reportedly have passed out cards with adult numbers on playgrounds…Invitations to call phone numbers…can come through the mail, too…The yellow pages…were a source for adult numbers.” [“Hucksters ply ads on TV, playgrounds,” Washington Times, 5/17/88]
“The Commission [FCC] has before it a complaint…The complainant alleges that her 16-year-old son made over 280 calls to various dial-a-porn telephone numbers…and that the nature of the subject matter communicated was obscene…Complainant expresses concern over the long-term effect that listening to dial-a-porn messages may have on children. She states that since her son made the calls, she has seen disturbing changes in the way he relates to women, and claims he has ‘lost all respect for women in general, but particularly the young girls he has been dating.’ According to the complaint, her son is now seeing a psychiatrist on a weekly basis.” [Notice of Apparent Liability, 3 FCC Rcd 7247, Adopted April 21, 1988]
“Although some efforts had been made in the past to restrict access by minors to dial-a-porn messages, the measures used, such as a warning at the start of a tape telling the caller to hand up if under 18 years of age, were useless. As these cases show, children do not hang up…In Tucson, Arizona, [a12-year-old boy] composed a letter to a girl in his class that he liked. In it he suggested they try acts of sadomasochistic sex he’d learned about after getting explicit instructions on ‘how to impress a girl’ from a live dial-a-porn operator. The girl gave the letter to a teacher, who turned it over to the police…When the police asked him why he wrote about such violent acts, he said, ‘I thought that’s what girls liked.’” [“How Pornographers Are Selling Sex To Kids,” Family Circle, 2/1/89]
“A…juvenile believed responsible for making more than $15,000 in calls to telephone sex lines and billing them to other people in northern Idaho has been identified and was to be charged Tuesday with felony petty theft…GTE public affairs manager Bob Wayt said the juvenile signed a statement admitting placing the calls to a dial-a-porn service and charging them to other numbers.” [“Youth Faces Charges In Dial-A-Porn Case,” Deseret News, 2/7/95]
“Phone Sex 1, Feds 0. A parley yesterday between regulators and the phone industry failed to find any magic cure for a new overseas boom in telephone sex that is stinging U.S. phone customers…A rash of new dialing tricks are bypassing the traditional 900 pay-per-call numbers that most business and home phone owners have learned to block…The phone owner cannot block these [new] numbers without knocking out all long-distance or toll-free dialing. And, unlike 900s, the new phone-sex numbers look like ordinary international calls and their bills cannot be refused without risking the loss of phone service. Complaints filed with the FCC…show a mounting exasperation among phone owners, especially the parents of teens.” [“Call for Help: Phone-sex sting unresolved,” N.Y. Newsday, 4/4/95]
“A mob-linked phone sex operation is the target of hundreds of complaints by angry callers who say it reached out and touched them with eye-popping bogus charges. Scores of irate parents have also accused the Manhattan-based operation of improperly allowing their kids to run up thousands of dollars in bills for calls to X-rated sex lines. The complaints focus on the empire of reputed Gambino crime family soldier Richard Martino who…has positioned himself as an emerging king of phone sex…Federal investigators say companies like Infoaccess make big bucks providing phone sex on what appear to be toll-free 800 numbers. Although many 800-number calls are free, carriers that obtain personal identification from callers can legally charge sky-high rates…What’s more, dialing to 800-number lines can’t be blocked entirely, as calls to 900-number lines can. One investigator said ‘unscrupulous’ phone sex companies switched from 900 number lines after federal legislation authorized the mass blocking.” [“A flood of X-rated anger: Gambino guy’s caper gouges users, it’s said,” N.Y. Daily News, 9/18/95]
“A letter-writing campaign by a group of Washington County residents has prompted FOX 13 to eliminate commercials in Utah for 900-number phone services. Offended by the ads’ sexual content and access to 900 numbers they provide to children and young adults, area members of the White Ribbons Against Pornography (WRAP) have mailed 200 letters to the station…said member Julie Goodrich…Goodrich said she launched the effort after hearing complaints about the ads from other parents, including one whose 13-year-old child had called the service.”
“The Disney hit movie ‘The Great Santa Clause’ still delivers great holiday entertainment, but it also comes with an 800 phone number for live pornography. The number, which actor Tim Allen gives as a gag in the PG-rated movie, promises ‘hot and wild phone talk’…and directs callers to a 900 number they can use without a credit card…While Mr. Allen’s words have been deleted from the version of the movie shown on TV and the Disney Channel on cable, the battle continues on what to do about thousands of tapes in video stores…The live-sex line uses a recorded provocative female voice that gives other numbers that may be called for ‘hot and heavy’ entertainment…In a case last Christmas, a 10 year old girl rang up a $250 bill by calling one of the 900 numbers 11 times. Later, she needed visits with a psychiatrist…” [“Video Version of Disney film includes dial-a-porn number,” Washington Times, 10/3/97]
Adults & Dial-A-Porn
Adults are also adversely affected by dial-a-porn.
As noted in the December 1983 issue of the American Bar Association Journal, “The FCC inquiry may result in a far reaching policy statement next year, Commission officials say…The FCC says ‘dial-a-porn’ receives up to 500,000 calls a day. Employers complained to their congressmen about employees making long distance calls on company time…”
As reported in the Detroit Free Press (“Sexy calls cost feds,” 12/15/83), “A Pentagon study of long-distance calls placed by the Defense Intelligence Agency shows that the super-secret military spy outfit spent an estimated $25,000 a month on calls to a…‘dial-a-porn’ number.”
As reported in the Washington Post (“$8,863 Phone Bill Rings No Bell For SE Woman,” 8/6/87), the Chesapeake & Potomac Telephone Co. is investigating an $8,863.15 telephone bill that a Southeast Washington woman received after 3,537 calls, which she cannot account for, were placed in two months from her number to 5 adult message services…[Mother’s name omitted] said her 19-year old daughter admitted making ‘a few calls’ to a 976 exchange that she saw displayed on TV. But the daughter denies making thousands of calls…”
As reported in the L.A. Daily News (“Man sentenced in phone sex case,” 10/3/87), “A man who ran up nearly $38,000 in phone-sex bills has been ordered to spend 180 days in a psychiatric hospital and repay the money he embezzled…to support his habit.”
As reported in the N.Y. Daily News (“Dial-a-porn scandal in schools,” 10/26/89), “Two troubled city school districts rang up nearly $90,000 - 18 times the cost of educating a child for a year - in dial-a-porn and other unauthorized phone calls over the past 21 months…”
As reported in the N.Y. Post (“Nassau workers dial away 51G on sex,” 3/22/90), Nassau County employees have been dialing for porn and other recorded messages at a cost to taxpayers of $51,000 over the past two years, County Executive Tom Gulotta said…Gulotta referred the matter to District Attorney Denis Dillon for possible prosecution for theft of services.”
As reported in the Hartford Courant (“Man sentenced to 20 years in sexual assault,” 5/2/91), “A judge sentenced [defendant] to 20 years in prison for trying to rape a Wesleyan student, and attacking her housemate, saying [defendant’s] ‘whole life is dominated by pornographic fantasies that he was prone to act on’…Police searched his room after the incident and found pornographic magazines…In 1987, [defendant] was convicted of a similar attack after he sexually assaulted a housemate...Then, in 1989, he was sentenced to 6 months for violation of probation; prosecutors said [defendant] ran up $500 worth of telephone bills to pornographic and sex related groups.”
As reported in the N.Y. Daily News (“Beyond the Valley of the Dials,” 5/17/91), “The 34-year-old salesman spent $10,000 a year on [pornographic] lines for nine years…’I’d go on binges…I’d call as often as 20 times a night’…His compulsive calls to fantasy girls ‘really hampered my social skills and ability to become intimate. I was looking for sex in a way that really wasn’t healthy - paying a woman on the phone, while looking at centerfolds from porno magazines’…[N]ow a member of Sex Addicts Anonymous, he admitted that constant use of the lines led him to ‘think of women as sex objects rather than human beings.’”
As reported in the N.Y. Times (“Extortion Is Alleged Over Phone-Sex Debts,” 6/10/94), “A company that specialized in collecting debts for telephone sex-lines extorted more than $2 million by threatening to inform spouses and employers about client’s debts for the calls, Federal prosecutors said today at a news conference. Some victims said they had never called the sex services but had paid the collection agency to avoid embarrassment…”
As reported in the Grand Rapids Press (“Couple sues AT&T over porn calls,” 2/23/95), “The owners of Lilia’s Candles, burned over a misprinted telephone number that instead connects potential customers to a sex line, have taken their complaint to…Court…saying [AT&T] failed to rectify a problem that began 10 months ago when the company incorrectly listed the toll-free number for Lilia’s Candles in two separate editions of its consumer and business toll-free directory…Callers hear a recording from a woman…who coos, ‘Hey Babe…Me and my beautiful girl friends are waiting to share all our hot desires with you.’ The recording then provides callers with a list of 1-900 and international numbers they can call…[F]or Lilia’s Candles, the error has been disastrous, the owners say.”
As reported by the Associated Press (“Wrong Number Firing,” 7/20/98), “Nurse [name omitted] was working the night shift at San Bernardino Community Hospital when a distraught man called. He said he was the convicted stalker of a teen-age girl. He needed a toll-free crisis hot line, someone to talk to when he felt manic…In the newest GTE phone book, under ‘Crisis - 24-Hour Emergency Help Line,’ she found a number. She gave it to him…It also highlights a problem the telephone industry says it can’t do much about: the reassignment of defunct crisis line numbers to the adult sex industry…The man dialed the number. ‘Get it hot…with the naughtiest girls around,’ said the tape-recorded female voice, who then explained how a conversation with an underage girl or a porn queen could be charged to a credit card…”
As reported in the N.Y. Post (“Shame of daytime,” 8/31/99), “Watching daytime TV is a lot like plunging into a cesspool…Just take yesterday for example. ‘Divorce Court’ premiered with a blonde woman who described through tears and running mascara how her husband ran up $4,000 in phone-sex bills, gave her gonorrhea and ran off with the babysitter.”
As reported in the N.Y. Post [“Gambinos in $200 million phone-sex rip-off: feds,” 2/10/04], “The Gambino family raked in nearly half a billion dollars ripping users of phone-sex lines and Internet porn sites, the feds charged yesterday. A new indictment charges Richard Martino and a white collar cohort with roping millions of victims into a $200 million fraud scheme by advertising ‘free samples’ of adult entertainment services - such as phone sex…A total of 10 Gambino wiseguys and associates were charged in the ‘telephone cramming’ scheme…Once the customers had placed a call to one of the [“free”] 800 numbers, a monthly $40 fee would automatically be added to their telephone bills - often disguised as a charge for ‘voice mail.’”
As reported in the N.Y. Daily News (“Now it’s hot(sex) line,” 5/20/05), “Got an arson tip? Spot an illegal stash of fireworks? Well, don’t call the FDNY hotline (800) FIRE-TIPS. The crucial number was mistakenly cancelled by bungling bureaucrats - and the easy-to-remember digits are now in the hands of a phone sex company…[Name of company omitted] has a history of picking up recently cancelled numbers an redirecting them to phone sex lines.”
A. Obscene Communications
In March 1983, Peter F. Cohalan, County Executive of Suffolk County, N.Y., filed a complaint with the FCC, alleging that N.Y. Telephone Co. had violated 47 U.S.C. 223 by allowing High Society Magazine to transmit obscene communications over its facilities.
Construing Section 223 to be penal in nature, the FCC’s Common Carrier Bureau dismissed the Cohalan complaint without prejudice, and referred the matter to the U.S. Department of Justice for possible criminal prosecution. Based on a determination that administrative action would be more appropriate in this instance, the Department of Justice declined to initiate criminal prosecution and turned the matter back over to the Commission.
In March 1983, Section 223 of Title 47, United States Code, read as follows:
Obscene or harassing telephone calls…
Whoever --
(1) in the District of Columbia or in interstate or foreign communication, by means of telephone --
(A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent;
(B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number;
(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or
(2) knowingly permits any telephone under his control to be used for any purpose prohibited by this section , shall be fined not more than $500 or imprisoned not more than six months, or both.” [Boldness and underline added by author]
Despite the plain language of Section 223(1)(A), the FCC concluded that Section 223 “was intended to apply to obscene or indecent phone calls that are deliberately made to innocent, un-consenting individuals. The absence of any reference in the legislative history to obscene phone calls between consenting parties leads us to conclude such messages…were not within the ambit of Section 223's prohibition." [Memorandum Opinion and Order, FCC 84-76, at p.12, 3/7/84]
In April 1985, a federal indictment was filed in Salt Lake City charging a “dial-a-porn” service with violating federal obscenity statutes [18 USC 1462 & 1465 and 47 USC 223(a)].
In April 1987, the U.S. Court of Appeals for the Ninth Circuit [United States v. Carlin Communications, Inc., 815 F.2d 1367] held that while the term “common carrier” can include telephone companies in certain settings, when used in 18 USC 1462, it should be understood as applying to means of transportation which carry persons or tangible property for hire and that 18 USC 1465 is restricted in its terms to the transportation of tangible objects. Noting that the FCC's interpretation of Section 223 was “entitled to substantial deference,” the Ninth Circuit also held that 47 USC 223(a) prohibited only the making of abusive telephone calls.
In April1988, Congress enacted a new version of 47 U.S.C. 223(b) [Public Law 100-690, Sec. 7524], prohibiting by means of telephone the making of any obscene communication for commercial purposes to any person, regardless of whether the maker of the communication placed the call. The Supreme Court in Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989) upheld the ban on obscene communications.
B. Indecent Communications
In December 1983, Congress amended 47 U.S.C. 223 [Public Law 98-214, Sec.8] adding a new Subsection (b) that prohibited, by means of telephone, the making of any obscene or indecent communication for commercial purposes to any person under 18. The law provided a defense to providers who restricted access to persons 18 or older in accordance with FCC regulations.
In June1984, the FCC issued a Report and Order [49 Fed. Reg. 24,996 (1984)] which established defenses to prosecution under 47 U.S.C. 223(b), namely that dial-a-porn providers operate only between 9 p.m. and 8 a.m. Eastern Time or require payment by credit card.
The U.S. Court of Appeals for the Second Circuit [Carlin Communications, Inc. v. FCC, 749 F.2d 113 (1984)] concluded that the “time channeling regulation” was unconstitutional because it was both “overinclusive” (denying access to adults during certain hours) and “underinclusive” (allowing youth to call after 9 p.m.) and because it was not the least restrictive means.
In October 1985, the FCC issued a Second Report and Order [50 Fed. Reg. 42,699 (1985)] requiring providers to send indecent messages only to adults who first obtain an access or ID code or, alternatively, to require callers to pay by credit card before access is obtained.
The U.S. Court of Appeals for the Second Circuit [Carlin Communications, Inc. v. FCC, 787 F.2d 846 (1986)] held that the FCC Order could not be applied to service providers using the facilities of N.Y. Telephone Co. but refused to stay the Order for the rest of the country.
In April1987, the FCC issued a Third Report and Order [52 Fed. Reg. 17,760 (1987)], which retained as defenses the use of access or ID codes or payment by credit card, and added as a defense the transmission of messages intelligible only by use of a descrambling device. The Order also required that calls to adult message services be labeled as such on telephone bills.
The Second Circuit in Carlin Communications, Inc. v. FCC, 837 F.2d 546 (1988) held that the regulations were valid but then held that the underlying statute (and thus the regulations) applied only to obscene communications.
In 1988, Congress enacted a new version of 47 U.S.C. 223(b) [Public Law 100-690, Sec. 7524] prohibiting any obscene or indecent communication for commercial purposes to any person.
In Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989), the Supreme Court upheld the ban only for obscene communications. The Court indicated, however, that the FCC’s credit card, access code and scrambling device rules would be a satisfactory solution to the problem of children accessing indecent communications.
In 1989, Congress again amended 47 U.S.C. 223 [Public Law 101-166, Sec. 521] to afford “safe harbor” defenses to providers that restrict minors’ access to indecent communications in accordance with FCC rules.
In July 1990, the FCC issued another Report and Order [55 Fed. Reg. 28,915 (1990)] allowing dial-a-porn providers to invoke the statutory defense by giving notice to the common carrier (if the carrier collects charges through phone bills) that they are providing indecent communications and by (1) requiring payment by credit card before messages are transmitted or (2) requiring an authorized access or identification code before messages are transmitted or (3) scrambling the message so that it is comprehensible only to one using a descrambler. Telephone companies that collect charges through phone bills must also block access to indecent communications from the telephones of subscribers who have not previously requested access in writing.
In 1991, almost a decade after dial-a-porn “first appeared in its commercial form,” the U.S. Court of Appeals in New York City [Dial Information Services v. Thornburgh, 938 F.2d 1535, cert. den., 502 U.S. 1072 (1992)], upheld both the prohibition in 47 U.S.C. 223(b) on providing indecent communications to minors and the FCC regulations.
In 1991, the U.S. Court of Appeals in San Francisco [Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866], also upheld the prohibition in 47 U.S.C. 223(b) on providing indecent communications to minors and the FCC regulations.
C. Government Enforcement Of Title 47, Section 223(b)
On April 13, 1987, two corporations (Adult Entertainment Network, Inc. and Adult Entertainment Network, Inc. II) pled guilty to providing obscene or indecent telephone messages to two boys in Utah, ages 11 and 14, in violation of 47 U.S.C. 223(b). According to the Deseret News [“U.S. Attorney gives parents credit for dial-a-porn’s defeat,” 4/ /87], “The…companies were fined the maximum of $100,000 and ordered to halt…all dial-a-porn messages on 38 leased phone lines in 12 cities.” The article also reported that Brent Ward, the U.S. Attorney in Salt Lake City, “expects more dial-a-porn prosecutions in Utah and hopes the state’s example will encourage federal prosecutors in other states to go after telephone sex operators.”
In January 1989, Brent Ward announced that he was resigning; and, to my knowledge, the current prohibition on obscene dial-a-porn, enacted in 1988 and upheld in 1989, has never been enforced by the U.S. Justice Department, despite the fact that dial-a-porn is still widely marketed in pornographic and mainstream publications and on TV and the Internet.
In a News Release [“FCC Begins Enforcement Proceedings Against Two Providers of ‘Dial-A-Porn,” 12/7/87], the FCC reported that the Chief of the Common Carrier Bureau sent letters to two “Dial-it” message service providers, Intercambio, Inc. and Audio Enterprises, Inc., “who appear to have violated Section 223(b) of the Communications Act and…the Commission’s rules…The two inquiry letters were sent out as a result of complaints filed with the Commission by parents whose minor children had accessed the services…Commission staff …investigated the telephone number contained in the complaints and determine that the providers had not availed themselves of the defenses of requiring access codes or prepayment by credit card. It was also determined that the content of the messages may be obscene or indecent.” In a statement attached to the Release, then FCC Chairman Dennis R. Patrick said:
“Section 223 of the Communications Act prohibits certain ‘dial-a-porn’ message services. This statute directs providers of these services to preclude access by minors by complying with FCC regulations…I am disturbed to learn that widespread noncompliance with these access safeguards exists. I have therefore directed the Common Carrier Bureau to make enforcement of Section 223 a priority and to initiate action where appropriate. The two letters mailed today represent the first step in our initiation of these enforcement activities…The FCC will be diligent in enforcement against prohibited ‘dial-a-porn’ activities.” [FCC News, 12/7/87]
The N.Y. Times [“$1.2 Million Levied Over Sex Messages,” 4/22/88] reported that the FCC later imposed “penalties totaling $1.2 million” on the two message service providers for failing to block children’s access to sexually explicit telephone messages. According to the article, the penalties “were the first enforcement actions the agency has taken against the operators of services in which telephone users pay a fee to dial and listen to pornographic messages.”
According to an article in the Newark Star Ledger [“FCC reports that it’s running out of dial-a-porn cases to investigate,” 4/4/88], the FCC also began investigating two other dial-a-porn companies, Ramrod Enterprises, Inc. and 2001 Enterprises. The article also said that “although the agency gets plenty of general complaints about dial-a-porn,” it is “running out of complaints it can act on.” Greg Vogt, chief of the telephone enforcement division, said the agency needed “information such as a phone bill and statement that someone under 18 has reached the service without using a credit card, an access code or a descrambler.”
In April 1989, the Commission released an Order [4 FCC Rcd 3833] ordering that (1) the Consent Decree involving 2001 Enterprises be adopted, (2) the parties abide by the Decree, and (3) the proceeding against 2001 Enterprises be terminated. Among other things, 2001 Enterprises and an individual agreed to pay $25,000.
To my knowledge, after launching the above investigations in 1987 and 1988, the FCC never again initiated an action under Section 223(b), even though Section 223(b) was amended in 1989 to do away with the requirement that indecent telephone messages be transmitted to a specific minor. As amended, the law now prohibits the making, by mean of telephone, of any indecent communication for commercial purposes that is available to a person under 18.
